The People of the State of New York, Respondent v. Roger Deloney

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --v.ROGER DELONEY, APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (ShawnDya L. Simpson, J.), rendered October 27, 2011.

People v DeLoney (Roger)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 8, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree, attempted endangering the welfare of a child, and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, following a non-jury trial, of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). At trial, a police officer testified that, after receiving a call over his police car's radio, he had arrived at the scene of the offenses within a minute and had seen a female, Aisha Baum, waving him down. She was tearing up, stuttering, speaking really fast, and frantic. She informed him that she had just been assaulted and thrown out of a vehicle and that the person who had assaulted her, the father of her children, had sped off with her baby in the back seat of the vehicle. The People's proof also included medical records and the tape of a 911 call, in which Ms. Baum declared to the 911 operator, among other things, that the father of her two children had just attacked her, that he had bitten her face and her hand, and that he had just driven off with her one-year-old son in the car. A review of the tape indicates that Ms. Baum exhibited clear emotion and difficulty breathing while making these statements.

In the circumstances presented, an arrest warrant was unnecessary, as the police officer had reasonable cause to believe that defendant had committed a crime (CPL 140.10 [b]) and because "[u]nlike a paid or anonymous informant, an eyewitness victim of a crime can provide probable cause for the arrest of her assailant despite the fact that her reliability has not been previously established or her information corroborated" (People v Read, 74 AD3d 1245, 1246 [2010] [citation omitted]; see People v Hart, 4 Misc 3d 105, 106 [App Term, 9th & 10th Jud Dists 2004]; 5 Carmody-Wait 2d § 177:27, at 212).

The trial court properly determined that the victim's statements in the 911 call were not testimonial in nature but made for the primary purpose of reporting an emergency in order to summon the police, and, therefore, there was no violation of defendant's rights under the Confrontation Clause (see People v Nieves-Andino, 9 NY3d 12 [2007]; People v Legere, 81 AD3d 746 [2011]). Furthermore, the 911 statements met the criteria for admission into evidence under the excited utterance exception to the hearsay rule (see People v Vasquez, 88 NY2d 561, 579 [1996]; People v Morton, 15 Misc 3d 141[A], 2007 NY Slip Op 51067[U] [App Term, 2d & 11th Jud Dists 2007]). With regard to the officer's testimony, defendant was granted the opportunity to cross-examine the officer and did in fact confront that witness.

Defendant waived his right to a jury trial by failing to object both to the reductions of the class A misdemeanor charges and to the pretrial dismissal of another charge and, thus, failed to preserve any issue in this regard for appeal (see CPL 470.05 [2]; People v Gay, 10 Misc 3d 134[A], 2005 NY Slip Op 52093[U] [App Term, 2d & 11th Jud Dists 2005]). Nor were the reductions and dismissal, in and of themselves, prejudicial to defendant (People v Gay, 10 Misc 3d 134[A], 2005 NY Slip Op 52093[U]).

With respect to defendant's claim that he was denied his constitutional right to a speedy trial due to the delay of one year and 11 days in bringing him to trial, we find that when all of the pertinent factors, i.e., "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by of the delay thereof" (People v Taranovich, 37 NY2d 442, 445 [1975]; see People ...

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